Treaties Task Force Report

by Duncan Hollis

Over the last year, Julian and I both participated in a task force on treaties, jointly convened by the American Bar Association and the American Society of International Law. Along with the task force’s other members including former guest bloggers like Ed Swaine and Curt Bradley (see the full list here), we’ve now produced a consensus report. Medellin served as the impetus for the task force’s creation, and our report focused on (1) identifying the range of available interpretations of that case; (2) potential consequences of its decision on the role of treaties in U.S. law; and (3) recommendations for addressing such consequences.

In terms of how to read Medellin, the report focuses on the case’s implications for (a) which treaties will be found to be non self-executing, and (b) what legal implications flow from attaching a non-self executing label to a treaty. In terms of the question of when a treaty will be deemed self-executing, the report notes:

The Court’s self-execution analysis may affect a limited class of treaties or a very substantial number: under the narrowest view, it would affect only the domestic enforceability of ICJ decisions (or, perhaps, also decisions of other tribunals rendered under comparable dispute resolution schemes); under an intermediate view, it would affect treaty provisions that contemplate future action by states parties and are not specifically addressed to the judiciary; and, under the broadest view, it would affect all treaties not affirmatively providing for judicial enforceability that might otherwise have been treated as self-executing.

On the question of legal implications, the task force was agreed that Medellin forecloses equating non-self execution with the absence of a private right of action, but found the opinion unclear on

whether a non-self-executing treaty is merely judicially unenforceable, or whether it more broadly lacks the status of domestic law. On the one hand, the opinion contains many statements, including in a footnote purporting to set forth the Court’s view of self-execution, that equate non-self-execution with lack of domestic law status. This position is consistent with the Court’s view that “domestic effect” for a non-self-executing treaty “depends upon implementing legislation passed by Congress.” It is not clear this interpretation of the decision would entail a change from past practice. On the other hand, the opinion also contains statements that equate non-self-execution simply with lack of judicial enforceability. . . It is also unclear whether the Supremacy Clause of the Constitution, which states that “all” treaties made by the United States shall be the supreme law of the land, requires that non-self-executing treaties have some domestic law status, and the Court in Medellín did not address that issue. . . .

The distinction between lack of domestic law status and lack of judicial enforceability might also be relevant in four contexts. First, it could constrain the President’s ability to comply with rules and standards promulgated under various treaties, whether they are decisions on consumption and production of ozone-depleting substances under the Montreal Protocol, standards issued by the International Civil Aviation Organization, or safety regulations for the shipping industry done in the International Maritime Organization. In each case, the United States has a treaty under which it has agreed to participate in the formulation of certain global rules or standards and then to implement those rules or standards, most often through executive action. But if the treaties on which the authority of these rules and standards rests lack the status of domestic law and there is no relevant statutory authority, what authority does the President have to implement them? Second, if non-self-executing treaties are more than judicially unenforceable and actually lack any domestic legal status, it may mean the President has no obligation to follow them as a matter of U.S. law. Third, differences in the legal effect of non self-executing treaties might also affect the obligation of U.S. state officials to comply with a non-self-executing treaty, an obligation asserted by Justice Stevens in his concurrence in Medellín, i.e., if non-self-executing treaties are not domestic law in the sense they are not the “supreme Law of the Land,” then they would fall outside the states’ Supremacy Clause obligations. Fourth and finally, the distinction might be relevant to the application of the canon of construction pursuant to which statutes are to be interpreted, where possible, to avoid treaty violations.

The report goes on to provide several recommendations for both existing and future treaties:

The task force recommends:
1. That legislation be enacted to provide procedures for implementing commitments in existing treaties on an expedited basis where the President reports to the Congress that binding measures are necessary to avoid the imminent risk of breach by the United States; and
2. That the Executive Branch, with respect to future treaties,
(i) seek treaty language consistent with its intent as to whether treaty provisions are self-executing;
(ii) identify in treaty transmittal documents which provisions are self-executing and how other provisions will be implemented; and,
(iii) as a general rule, if implementing legislation is required for U.S. compliance, not bring the treaty into force until that legislation is enacted; and
3. That the Senate, with respect to future treaties, as a general rule, to declare in resolutions of advice and consent which provisions are self-executing and its expectation, in instances where new implementing legislation is required, that the treaty will not be brought into force for the United States until such legislation is enacted.

The ABA Section on International Law’s Council will consider approving the task force recommendations later this month. If they approve it, it would then be subject to consideration by the ABA as a whole for adoption as ABA policy. Since ASIL generally does not take such policy positions, the report and recommendations are considered to be just the views of the task force, not ASIL as a whole.

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